State ex rel. Jenkins v. Fayne

Decision Date30 June 1964
Citation129 N.W.2d 147,24 Wis.2d 476
PartiesSTATE ex rel. Dorothy JENKINS, Plaintiff, v. Robert FAYNE, a minor, Defendant. Theodore W. COGGS, Appellant, v. COUNTY COURT OF MILWAUKEE COUNTY, Hon. Herbert Schultz, Judge Presiding, Respondent.
CourtWisconsin Supreme Court

Judge Presiding, Respondent.

Supreme Court of Wisconsin.

June 30, 1964.

Appellant Theodore W. Coggs was found in contempt of court by the county court of Milwaukee county, civil division, and was fined $25. Coggs then appealed to the circuit court from the county court order finding him in contempt, and the circuit court, by an order dated September 26, 1963, dismissed the appeal for want of jurisdiction over the subject matter. Coggs has appealed from the order of the circuit court.

Harvey L. McCormick, Milwaukee, for appellant.

George Thompson, Atty. Gen., William A. Platz, Robert D. Martinson, Asst. Attys. Gen., Madison, for respondent.

DIETERICH, Justice.

The facts are not in dispute. Appellant Coggs is an attorney, and was retained to represent the defendant in a paternity proceeding before the county court. The county court called the case for trial on April 23, 1963, and neither the defendant nor Mr. Coggs were present. No explanation of their absence was given at the time. The trial began, and the testimony of the complaining witness was being taken when the defendant Fayne entered the courtroom alone. The complaining witness's testimony was read to the defendant, and he was then examined. At 9:40 a. m., after the testimony was closed, Attorney Coggs appeared and the county court held him in contempt and fined him $25.

Coggs served a notice of appeal to the circuit court for Milwaukee county, and the appeal was assigned to the civil division of the circuit court. The circuit court dismissed the appeal, and stated in a memorandum decision that the contempt for which Mr. Coggs was cited was a criminal contempt committed in a branch of the civil division of the county court; and that sec. 299.30(3), Stats., 1 does not authorize an appeal to the circuit court from a citation for criminal contempt.

The only issue before this court is whether the circuit court had jurisdiction to hear the appeal from the order of the county court finding appellant Coggs in contempt.

The circuit court stated in its memorandum decision that the appeal should have gone to the supreme court and not the circuit court. Sec. 274.09(1), Stats., provides in part as follows:

'Appeals to the supreme court may be taken from the circuit courts unless expressly denied and also from the county courts except where express provision is made for an appeal to the circuit court * * *.'

Sec. 324.01, Stats., is entitled 'Appeals from county court,' and provides in part that:

'Any person aggrieved by any order or judgment of the county court may appeal therefrom to the supreme court, and the provisions of chapter 274 shall apply. * * *'

There is no statute authorizing appeals to the circuit court from county court contempt citations.

The appellant argues, however, that the alleged offense for which he was fined was a misdemeanor, and therefore appealable to the circuit court under sec. 958.075(1), Stats., which reads in part as follows:

'Misdemeanor appeals from county court. (1) Appeals is misdemeanor cases are to the circuit court for the county * * *.'

A misdemeanor is defined by sec. 939.60, Stats., in the following terms:

'A crime punishable by imprisonment in the state prison is a felony. Every other crime is a misdemeanor.'

Thus, in arguing that contempt is a misdemeanor the appellant assumes that it is a crime. The punishment for contempt is set forth not in the criminal code, but under the chapter dealing with general court provisions (ch. 256), and also in the chapter specifically devoted to 'contempts in civil actions.' (ch. 295). It is true that contempt is punishable by fine or by imprisonment or both, pursuant to secs. 256.06 and 295.13, Stats.; and it is also true that sec. 256.03 speaks of 'criminal contempt.' However, from a reading of sec. 256.07, 2 it is clear that the legislature has not deemed all so-called 'criminal contempt' citations to be 'crimes,' for that section provides for possible criminal prosecution in addition to the punishment imposed by the other subsections of ch. 256. Sec. 295.17 similarly subjects persons proceeded against under ch. 295 to an...

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8 cases
  • State v. Carpenter, 92-2435
    • United States
    • Wisconsin Court of Appeals
    • October 28, 1993
    ...in 1979, see ch. 257, Laws of 1979, the supreme court held that contempt of court is not a crime. State ex rel. Jenkins v. Fayne, 24 Wis.2d 476, 480, 129 N.W.2d 147, 149 (1964). While the state acknowledges this precedent, it argues that in revising the contempt statutes, the legislature in......
  • Milwaukee County v. Caldwell
    • United States
    • Wisconsin Supreme Court
    • June 7, 1966
    ...as modified, or that the appeal be dismissed, or may move for a new trial or a reversal. * * *12 Sec. 299.30(2), Stats.13 (1964), 24 Wis.2d 476, 129 N.W.2d 147. ...
  • State ex rel. Di Salvo v. County Court of Washington County, Branch II
    • United States
    • Wisconsin Supreme Court
    • July 1, 1977
    ...court and then to the Supreme Court. This contention is incorrect as a matter of law. We pointed out in State ex rel. Jenkins v. Fayne, 24 Wis.2d 476, 129 N.W.2d 147 (1964), that contempt orders of a county court are appealable directly to the Supreme At oral argument before this court, Di ......
  • James v. State
    • United States
    • Wisconsin Supreme Court
    • June 30, 1964
    ... ... 1690; Williams v. New York (1949), 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337; State ex rel. Volden v. Haas (1953), 264 Wis. 127, 58 N.W.2d 577. However, we cannot look upon sentencing as ... ...
  • Request a trial to view additional results

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